Another R10m to QFS
Ndlambe aim to buy company s RO equipment ’
Ndlambe Municipality intends to pay another R10.5m to procure reverse osmosis (RO) equipment already manufactured and acquired by Quality Filtration Systems (QFS), after a tender and contract with the company was declared unlawful and set aside by the Grahamstown high court.
Doing so would have the dual effect of avoiding litigation with QFS to get back R20m Ndlambe already paid to the company, and would potentially spare municipal manager Rolly Dumezweni and other officials from the consequences of irregular, fruitless and wasteful expenditure.
This after Judge Phillip Zilwa said it was “shocking and difficult to comprehend“that the municipality had rushed to pay QFS R20m on May 25, even before the written contract pertaining to the tender had been signed by the parties, which only occurred afterwards, on May 29.
He also said it was puzzling that the municipality had concluded the contract with QFS while the matter was still before the court.
The judge found the fact that the municipality had asked QFS to amend and supplement its bid, long after bids had closed, irregular and contrary to proper procurement procedure requirements.
Focusing specifically on the actions of Dumezweni, the judge said: “It was not open to the municipal manager to simply ignore the prescribed minimum score for functionality as he purported to do in this matter.
“His weak-kneed attempt to explain this serious shortcoming amounts to naught. His actions were tainted with impropriety and irregularity, rendering the whole process nugatory.”
Zilwa also said: “Once the contract is set aside, QFS must effect restitution and repay that amount [R20m] to the municipality.”
However, QFS Eastern Cape director Musawenkosi Ndlovu denied that the judgment required that the company must pay back the money.
Ndlovu also said: “QFS has determined the equipment manufactured for the Kowie project is valued higher than the payment paid to QFS.
“Various administrative shortcomings have resulted in substantial damages to QFS.”
"On this matter, Zilwa had said: On the papers very little appears to have been done by QFS after the improper award of the tender to it by the municipality.
“The equipment that QFS has offered to provide appears to be the second-hand equipment that it already had, not equipment acquired or manufactured specially for this project.”
Ndlambe decided not to appeal the judgment, and said its lawyers were dealing with the matter of the R20m.
This week, Ndlambe mayor Khululwa Ncamiso issued a statement saying that QFS had spent about R30m manufacturing and acquiring equipment for the Kowie RO project.
“After extensive negotiations between Ndlambe and QFS company's legal representatives, a delegation of representatives, including Ndlambe's expert civil engineers, visited QFS company's premises in Cape Town to verify the completed and acquired equipment, documents, drawings and reports relating to the work done by them,” Ncamiso said.
"Based on that inspection, the advice received by Ndlambe from its experts was that the additional sum of R10.5m was a fair sum to pay for work already done by QFS company.”
Ncamiso further said that at a recent council meeting, and on the advice of their attorney and advocate, who were further advised by "expert civil engineers ”, it had been agreed to resolve issues with QFS by paying the sum of R10.5m for equipment already manufactured and acquired, and to arrange for the transport of the equipment to Port Alfred at Ndlambe's expense.
"Any litigation between Ndlambe and QFS company would delay the project by at least a year and the legal advice received by Ndlambe was that payment should be made to avoid fruitless and wasteful expenditure and to ensure that the tender process is accelerated to ensure the completion of the RO plant project,” the mayor said.
"Ndlambe's consulting expert civil engineers have confirmed that the equipment already manufactured by QFS company can be utilised in the QFS project, and factored into the new tender.”
She said the new tender should be able to proceed shortly, on an emergency procurement basis, with the consent of the department of cooperative governance & traditional affairs and the department of water & sanitation, "and in the best interests of the citizens of Ndlambe Local Municipality ”.